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Need for reform of Temporary Foreign Worker Program highlighted by Human Rights verdict

On May 27, 2015, the Human Rights Tribunal of Ontario decreed Presteve Foods Inc. and owner Jose Pratas guilty of abusing temporary foreign workers. It awarded two of the 40 plaintiffs, known only in court documents as OPT and MPT, more than $200,000 in damages, the largest sum it has ever awarded, with the other plaintiffs reaching a settlement earlier with Presteve Foods.

The Tribunal found that OPT and MPT were subjected to sexual advances and solicitation, sexual assault and harassment, employment discrimination on the basis of sex, and a sexually poisoned work environment. The Tribunal held that OPT, in particular, was harassed continuously by Pratas, who confiscated her passport upon her arrival, threatened her with deportation, and repeatedly sexually assaulted her.

OPT and MPT, who were granted Canadian permanent residency on humanitarian and compassionate grounds and are now working in Windsor, Ontario, are "doing okay after the trial and are gratified by the decision…they appreciate that their voices were heard and that they were believed," says Unifor labour lawyer Niki Lindquist, who represented the plaintiffs.

Testifying during the tribunal led OPT and MPT, who do not speak English and used a translator during the hearings, to relive the trauma of their abuse while they were vigorously cross-examined. "I've never been involved in a hearing this contentious," Lindquist observes, "and I imagine OPT and MPT are still dealing with the after-effects."

She notes further that, "it was an eight year process to get this case heard. OPT and MPT tried to get assistance before this and told an immigration officer what was going on, to no avail. In fact, Unifor was not at first aware that OPT and MPT were union members. It was while we were gathering testimonies from 38 other workers that we heard about OPT and MPT's cases. Theirs was the most egregious. We included their accounts with the others and filed a human rights complaint."

Chris Ramsaroop, an organizer for Justicia for Migrant Workers, supports Lindquist's account. He emphasizes that OPT and MPT's cases, while extreme, were representative of the struggles faced by temporary foreign workers.

"From all accounts, Presteve Foods created an abusive working environment where fear was widespread. The 40 temporary foreign workers were all being exploited," says Ramsaroop.

He adds that the Tribunal hearings were part of a longer struggle to highlight individual and systemic patterns of abuse faced by the other temporary foreign workers employed by Presteve Foods and Pratas.

Ramsaroop and Lindquist see the Tribunal verdict as a success.

Ramsaroop states that this shows the positive impacts of "workers coming together and organizing," though he adds that the Tribunal's ruling in support of temporary foreign workers is an "exception to the norm of temporary foreign workers being abused. The case does not provide systemic remedies."

Lindquist argues that while the verdict "may embolden specific temporary foreign workers to assert their rights and may even lead individual policymakers to take a second look at the [Temporary Foreign Worker Program], the award itself is limited in its impacts if the TFWP exists in this way. It is a good beginning but it still does not mean that the fundamental causes of exploitation are addressed. The structure of the program makes it such that workers face tremendous personal risks if they come forward."

Both Ramsaroop and Lindquist believe that widespread changes to the TFWP are necessary. When asked whether the federal government's changes to the TFWP have improved the situation of temporary foreign workers, Ramsaroop remains pessimistic.

Measures such as the provision of random and unannounced visits to temporary foreign workers' workplaces and the creation of an anonymous 'tip-line' for workers to report instances of abuse do not address the root of the problem. Ramsaroop holds that because temporary foreign workers' employment and immigration visas are tied to their employers, employers continue to wield tremendous power over them; temporary foreign workers therefore have little incentive to report cases of abuse.

An important measure to mitigate abuse, according to Ramsaroop, is giving migrant workers landed status upon arrival.

Migrante-Canada's regional coordinator Jesson Reyes provides similar criticisms of the "employer-driven" nature of the TFWP, which he sees as making workers "more likely to endure various kinds of abuse." Reyes argues that tying temporary foreign workers' immigration and employment statuses to their employers "ensures that power remains in the hands of employers."

Reyes is therefore supportive of the aforementioned reforms but adds that, "reforms made to the program will only take us to a certain point…ultimately, we must continue to hold this government accountable for the thousands of workers they bring into Canada on a temporary basis. We must be critical of how the Canadian government continuously 'imports' workers from countries like Mexico and the Philippines in order to profit from their labour while disregarding the way these workers continue to be exploited."

Ethel Tungohan is a community activist and a Grant Notley Postdoctoral Research Fellow at the University of Alberta.

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